JIPEL Vol. 2 – No. 1

Despite the continued reliance on the rhetorical device that modern invention is performed by individual inventors in their garages, few would disagree that today most patentable inventive activity occurs in corporate and university settings and that most individuals who would be labeled “inventors” in the twenty-first century are employees of a corporate entity. Yet, while copyright law’s work made for hire doctrine automatically vests employers with ownership of works made within their employees’ scope of employment, except in a few limited circumstances, patent law continues to require a written assignment of the rights to a patented invention. In order to resolve resulting issues and bring patent law into the twenty-first century, the Patent Act should be amended to borrow from the Copyright Act and adopt a principle similar to the work made for hire doctrine that would grant employers the rights to their employees’ inventions made within the scope of their employment.

As a result of the Supreme Court’s 2005 decision in Booker v. United States that rendered the United States Sentencing Commission’s Sentencing Guidelines advisory only and no longer mandatory, district courts now enjoy significant discretion in determining the appropriate sentence for convicted offenders. By analyzing federal sentencing data for sentences imposed between 1997 and 2011, this article presents an empirical analysis of how Booker has impacted the ways in which district courts impose sentences on offenders convicted of intellectual property crimes. This analysis reveals, inter alia, that (1) sentences imposed on intellectual property offenders deviate from Guidelines-recommended sentences in two out of every three cases; (2) prosecutors seek and judges impose reduced sentences for intellectual property crimes more frequently than for other comparable crimes; and (3) judge-initiated downward deviations from the Guidelines occur after Booker about seven times as frequently for intellectual property offenders than for other offenders, whereas such judge-initiated deviations before Booker occurred less frequently than for crimes in general or for other economic crimes.

The Patent Act’s omission to define inventorship leaves a paramount concept in a legal vacuum. Where courts have stepped in to fill the void, they have largely deferred to the inventor, and joint inventor, status articulated in the patent claims. This fixation fails to accurately reflect the contributions of those who, by common understanding, are inventors. In doing so, the patent system incentivizes not invention, as the Constitution and Congress conceived, but legal claims of invention, playing to the advantage of the legally sophisticated rather than the scientifically innovative. In this article Professor Fellmeth explores this fundamental disconnect, and proposes several legal solutions.

In July 2011, a consortium of major content providers and Internet service providers announced their intention to implement the Copyright Alert System, a graduated response plan aimed at stemming online copyright infringement by individual users. While other commentators have examined the rise of these systems abroad and certain potential issues with the implementation of such measures in the United States, little has been said about the antitrust implications of a private system of copyright enforcement. This article recounts the history of online infringement leading up to the Copyright Alert System and then analyzes the system from the perspective of antitrust law, taking the position that the system announced raises significant antitrust concerns. The article concludes with recommendations for improving the current system to protect the rights of consumers.

In recent years, politicians, academics, and industry professionals have argued vehemently that copyright protection should extend to cover fashion designs, which are currently excluded under the “useful articles” doctrine. Copyright in the United States is built on economic principles and aims to incentivize innovation. After reviewing the legislative history and other arguments made by proponents of fashion copyright, a different picture emerges: supporters of fashion copyright view fashion as “art” and feel a sense of harm when it is cheaply or slavishly copied. Even if designers feel no economic harm from the copying of their creations, they are morally harmed by it. Perhaps then moral rights law, not copyright, provides the appropriate theoretical framework in which to analyze the extension of further protections to fashion design.

In April 2011, comedic musician “Weird Al” Yankovic sought Lady Gaga’s permission to release his song “Perform This Way,” a spoof on Lady Gaga’s “Born This Way” that parodied the artist herself, rather than the original work. But did he even need Gaga’s permission to borrow from her hit song? Courts have only recently begun to consider whether to treat these “author parodies” more like traditional parodies, satires, or something else entirely. The Supreme Court and the circuit courts have yet to address the issue, and the few district courts that have weighed in have propounded opposite holdings. Given the prevalence of author parodies such as “Perform This Way” in popular culture, how the law eventually decides to view these distinctive works will have significant implications for authors and appropriators alike. This article presents both an economic and legal argument for privileging author parodies in a fashion similar to parodies of a work.